92 Cal. App. 2d 1 | Cal. Ct. App. | 1949
The plaintiff and the defendant Phillips were married in 1941. In October, 1944, they contracted for the purchase of a house and lot in Fresno which they occupied as a home. On February 19, 1945, this property was deeded to them as “Eobert M. and LaVerne J. Phillips, husband and wife, as joint tenants. ’ ’ This deed was recorded on May 18, 1945. In December, 1945, these parties separated and the property was leased to the defendant MeCluskey.
In February, 1946, the defendant Beiff obtained a judgment for $3,041.32 in an action against defendant Eobert M. Phillips in the Superior Court of Los Angeles County. An abstract of this judgment was recorded in Fresno County on March 6, 1946. An execution sale was held under this judgment and a sheriff’s certificate of sale was issued on December 9, 1947, and recorded on December 10, 1947, showing the sale to defendant Beiff of the interest of Eobert M. Phillips and the community interest, if any, of LaVerne Phillips, also known as LaVerne J. Solomon, in this real property.
On April 12, 1946, the plaintiff obtained a divorce from the defendant. Phillips in Nevada. Having remarried, she commenced this action on August 25, 1947. In the first three causes of action she’ sought a partition of this real property and other relief as against the defendant Phillips. In the
The appellant contends that this property was the community property of the respondent and Robert M. Phillips, that as such the entire property was liable for the husband’s debts, and that his judgment lien, having been obtained before the parties were divorced, attached to the entire property.
It is first contended that it was admitted by the pleadings that this was community property; that the character of the property was therefore not in issue; and that the court erred in finding, contrary to the admission in the pleadings, that the property was held in joint tenancy. In the first cause of action it was alleged that the respondent and Robert M. Phillips acquired this real property during their married life by their joint efforts, and "that plaintiff is informed and believes and therefore alleges upon such information and belief that the property hereinabove described is the community property of the parties, or that they hold the same as tenants in common.” These allegations were included by reference in the fourth cause of action, and were admitted by the answer of the appellant. This was not, as the appellant contends, an admission that this property was held by the
It is next contended that the deed to the respondent and her former husband as joint tenants merely raised a disputable presumption that they took title as joint tenants; that this presumption may be overcome by the evidence of the actual intention of the parties; that the evidence here shows, without conflict, that no joint tenancy was intended and that the property was community property; and that the court should have so found. The argument that such a situation here appears is based upon the testimony given by the defendant Phillips, and that there is in addition “the positive allegation in plaintiff’s amended complaint that the real property is community property which was admitted by defendant Reiff’s answer.” The supposed admission in the pleadings that this was community property must be eliminated, as above pointed out. The joint tenancy deed, and the presump
Moreover, the manner in which Phillips testified, the character of his testimony and such things as his bias and motives, were matters to be considered by the court in weighing his testimony. (Blank v. Coffin, 20 Cal.2d 457 [126 P.2d 868].) Phillips, who was the stepson of the appellant, displayed great animosity toward the respondent. While his memory was rather good on his direct examination, he was evasive and antagonistic while being cross-examined by respondent’s counsel. During the cross-examination the court suggested that no further questions be asked along a certain line, saying: “The court has observed the character of the memory of the witness.” At the conclusion of Phillips’ testimony the court remarked “The evidence that is presented does not convince the court that the property was in any other than— what the record title shows,” and that “So far as the court is concerned it is joint tenancy property.” After further argument, the court made findings to the same effect. It cannot be held, as a matter of law, that the presumption arising from the joint tenancy deed was overcome by the evidence here produced. Clear and satisfactory evidence should be required to upset the legal effect of such a deed, and this should be especially true under the situation which obviously existed here. The question was one of fact for the trial court, and the most that could be said is that the court’s decision was made upon conflicting evidence.
Griffin, J., and Mussell, J., concurred.